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U.S. Customs and Border Protection
◆
19 CFR CHAPTER I
NOTIFICATION OF TEMPORARY TRAVEL RESTRICTIONS
APPLICABLE TO LAND PORTS OF ENTRY AND FERRIES
SERVICE BETWEEN THE UNITED STATES AND CANADA;
CORRECTION
AGENCY: Office of the Secretary, U.S. Department of Homeland
Security; U.S. Customs and Border Protection, U.S. Department of
Homeland Security.
ACTION: Notification of continuation of temporary travel restric-
tions; correction.
SUMMARY: The Department of Homeland Security (DHS) is mak-
ing corrections to a notice that appeared in the Federal Register on
December 22, 2020. The document contained incorrect dates.
DATES: The corrections apply to the notification published in the
Federal Register December 22, 2020.
FOR FURTHER INFORMATION CONTACT: Stephanie
Watson, Office of Field Operations Coronavirus Coordination Cell,
U.S. Customs and Border Protection (CBP) at 202–325–0840.
SUPPLEMENTARY INFORMATION:
Correction
In the Federal Register of December 22, 2020, in FR Doc. 2020–
28381—
• On page 83432, in the first column, correct the words ‘‘January
21, 2020.’’ to read, ‘‘January 21, 2021.’’; and
• On page 83433, in the second column, correct the words ‘‘January
21, 2020.’’ to read, ‘‘January 21, 2021.’’
CHRISTINA E. MCDONALD,
Associate General Counsel
for Regulatory Affairs.
[Published in the Federal Register, January 19, 2021 (85 FR 4967)]
12 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
19 CFR CHAPTER I
NOTIFICATION OF TEMPORARY TRAVEL RESTRICTIONS
APPLICABLE TO LAND PORTS OF ENTRY AND FERRIES
SERVICE BETWEEN THE UNITED STATES AND MEXICO;
CORRECTION
AGENCY: Office of the Secretary, U.S. Department of Homeland
Security; U.S. Customs and Border Protection, U.S. Department of
Homeland Security.
ACTION: Notification of continuation of temporary travel restric-
tions; correction.
SUMMARY: The Department of Homeland Security (DHS) is mak-
ing corrections to a notice that appeared in the Federal Register on
December 22, 2020. The document contained incorrect dates.
DATES: The corrections apply to the notification published in the
Federal Register December 22, 2020.
FOR FURTHER INFORMATION CONTACT: Stephanie
Watson, Office of Field Operations Coronavirus Coordination Cell,
U.S. Customs and Border Protection (CBP) at 202–325–0840.
SUPPLEMENTARY INFORMATION:
Correction
In the Federal Register of December 22, 2020, in FR Doc. 2020–
28375—
• On page 83433, in the third column, correct the words ‘‘January
21, 2020.’’ to read, ‘‘January 21, 2021.’’; and
• On page 83434, in the third column, correct the words ‘‘January
21, 2020.’’ to read, ‘‘January 21, 2021.’’
CHRISTINA E. MCDONALD,
Associate General Counsel
for Regulatory Affairs,
U.S. Department of Homeland Security.
[Published in the Federal Register, January 19, 2021 (85 FR 4967)]3 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
19 CFR CHAPTER I
NOTIFICATION OF TEMPORARY TRAVEL RESTRICTIONS
APPLICABLE TO LAND PORTS OF ENTRY AND FERRIES
SERVICE BETWEEN THE UNITED STATES AND CANADA
AGENCY: Office of the Secretary, U.S. Department of Homeland
Security; U.S. Customs and Border Protection, U.S. Department of
Homeland Security.
ACTION: Notification of continuation of temporary travel restric-
tions.
SUMMARY: This document announces the decision of the Secretary
of Homeland Security (Secretary) to continue to temporarily limit the
travel of individuals from Canada into the United States at land ports
of entry along the United States-Canada border. Such travel will be
limited to ‘‘essential travel,’’ as further defined in this document.
DATES: These restrictions go into effect at 12 a.m. Eastern
Standard Time (EST) on January 22, 2021 and will remain in effect
until 11:59 p.m. EST on February 21, 2021.
FOR FURTHER INFORMATION CONTACT: Stephanie
Watson, Office of Field Operations Coronavirus Coordination Cell,
U.S. Customs and Border Protection (CBP) at 202–325–0840.
SUPPLEMENTARY INFORMATION:
Background
On March 24, 2020, DHS published notice of the Secretary’s deci-
sion to temporarily limit the travel of individuals from Canada into
the United States at land ports of entry along the United States-
Canada border to ‘‘essential travel,’’ as further defined in that docu-
ment.1 The document described the developing circumstances
regarding the COVID–19 pandemic and stated that, given the out-
break and continued transmission and spread of the virus associated
with COVID–19 within the United States and globally, the Secretary
had determined that the risk of continued transmission and spread of
the virus associated with COVID–19 between the United States and
Canada posed a ‘‘specific threat to human life or national interests.’’
1
85 FR 16548 (Mar. 24, 2020). That same day, DHS also published notice of the Secretary’s
decision to temporarily limit the travel of individuals from Mexico into the United States at
land ports of entry along the United States-Mexico border to ‘‘essential travel,’’ as further
defined in that document. 85 FR 16547 (Mar. 24, 2020).4 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
The Secretary later published a series of notifications continuing such
limitations on travel until 11:59 p.m. EST on January 21, 2021.2
The Secretary has continued to monitor and respond to the
COVID–19 pandemic. As of the week of January 4, there have been
over 83.3 million confirmed cases globally, with over 1.8 million con-
firmed deaths.3 There have been over 20.7 million confirmed and
probable cases within the United States,4 over 587,000 confirmed
cases in Canada,5 and over 1.4 million confirmed cases in Mexico.6
Notice of Action
Given the outbreak and continued transmission and spread of
COVID–19 within the United States and globally, the Secretary has
determined that the risk of continued transmission and spread of the
virus associated with COVID–19 between the United States and
Canada poses an ongoing ‘‘specific threat to human life or national
interests.’’
U.S. and Canadian officials have mutually determined that non-
essential travel between the United States and Canada poses addi-
tional risk of transmission and spread of the virus associated with
COVID–19 and places the populace of both nations at increased risk
of contracting the virus associated with COVID–19. Moreover, given
the sustained human-to-human transmission of the virus, returning
to previous levels of travel between the two nations places the per-
sonnel staffing land ports of entry between the United States and
Canada, as well as the individuals traveling through these ports of
entry, at increased risk of exposure to the virus associated with
COVID–19. Accordingly, and consistent with the authority granted in
2
See 85 FR 83432 (Dec. 22, 2020); 85 FR 74603 (Nov. 23, 2020); 85 FR 67276 (Oct. 22, 2020);
85 FR 59670 (Sept. 23, 2020); 85 FR 51634 (Aug. 21, 2020); 85 FR 44185 (July 22, 2020); 85
FR 37744 (June 24, 2020); 85 FR 31050 (May 22, 2020); 85 FR 22352 (Apr. 22, 2020). DHS
also published parallel notifications of the Secretary’s decisions to continue temporarily
limiting the travel of individuals from Mexico into the United States at land ports of entry
along the United States-Mexico border to ‘‘essential travel.’’ See 85 FR 83433 (Dec. 22,
2020); 85 FR 74604 (Nov. 23, 2020); 85 FR 67275 (Oct. 22, 2020); 85 FR 59669 (Sept. 23,
2020); 85 FR 51633 (Aug. 21, 2020); 85 FR 44183 (July 22, 2020); 85 FR 37745 (June 24,
2020); 85 FR 31057 (May 22, 2020); 85 FR 22353 (Apr. 22, 2020). Both December notices
contained typos with respect to the end date of the extension; as of December 23, 2020,
correction notices were pending publication in the Federal Register.
3
WHO, Coronavirus disease 2019 (COVID–19) Weekly Epidemiological Update (Jan. 5,
2021), available at https://www.who.int/publications/m/item/weekly-epidemiological-
update—5-january-2021.
4
CDC, COVID Data Tracker (accessed Jan. 6, 2021), available at https://covid.cdc.gov/
covid-data-tracker/.
5
WHO, COVID–19 Weekly Epidemiological Update (Jan. 5, 2021).
6
Id.5 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 19 U.S.C. 1318(b)(1)(C) and (b)(2),7 I have determined that land ports of entry along the U.S.-Canada border will continue to suspend nor- mal operations and will only allow processing for entry into the United States of those travelers engaged in ‘‘essential travel,’’ as defined below. Given the definition of ‘‘essential travel’’ below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border. For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to ‘‘essential travel,’’ which includes, but is not limited to— • U.S. citizens and lawful permanent residents returning to the United States; • Individuals traveling for medical purposes (e.g., to receive medi- cal treatment in the United States); • Individuals traveling to attend educational institutions; • Individuals traveling to work in the United States (e.g., individu- als working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work); • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID–19 or other emergencies); • Individuals engaged in lawful cross-border trade (e.g., truck driv- ers supporting the movement of cargo between the United States and Canada); 7 19 U.S.C. 1318(b)(1)(C) provides that ‘‘[n]otwithstanding any other provision of law, the Secretary of the Treasury, when necessary to respond to a national emergency declared under the National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific threat to human life or national interests,’’ is authorized to ‘‘[t]ake any . . . action that may be necessary to respond directly to the national emergency or specific threat.’’ On March 1, 2003, certain functions of the Secretary of the Treasury were transferred to the Secretary of Homeland Security. See 6 U.S.C. 202(2), 203(1). Under 6 U.S.C. 212(a)(1), authorities ‘‘related to Customs revenue functions’’ were reserved to the Secretary of the Treasury. To the extent that any authority under section 1318(b)(1) was reserved to the Secretary of the Treasury, it has been delegated to the Secretary of Homeland Security. See Treas. Dep’t Order No. 100–16 (May 15, 2003), 68 FR 28322 (May 23, 2003). Additionally, 19 U.S.C. 1318(b)(2) provides that ‘‘[n]otwithstanding any other provision of law, the Commissioner of U.S. Customs and Border Protection, when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.’’ Congress has vested in the Secretary of Homeland Security the ‘‘functions of all officers, employees, and organizational units of the Department,’’ including the Commis- sioner of CBP. 6 U.S.C. 112(a)(3).
6 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
• Individuals engaged in official government travel or diplomatic
travel;
• Members of the U.S. Armed Forces, and the spouses and children
of members of the U.S. Armed Forces, returning to the United States;
and
• Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of ‘‘essential
travel’’ for purposes of this Notification—
• Individuals traveling for tourism purposes (e.g., sightseeing, rec-
reation, gambling, or attending cultural events).
At this time, this Notification does not apply to air, freight rail, or
sea travel between the United States and Canada, but does apply to
passenger rail, passenger ferry travel, and pleasure boat travel be-
tween the United States and Canada. These restrictions are tempo-
rary in nature and shall remain in effect until 11:59 p.m. EST on
February 21, 2021. This Notification may be amended or rescinded
prior to that time, based on circumstances associated with the specific
threat.8
The Commissioner of U.S. Customs and Border Protection (CBP) is
hereby directed to prepare and distribute appropriate guidance to
CBP personnel on the continued implementation of the temporary
measures set forth in this Notification. The CBP Commissioner may
determine that other forms of travel, such as travel in furtherance of
economic stability or social order, constitute ‘‘essential travel’’ under
this Notification. Further, the CBP Commissioner may, on an indi-
vidualized basis and for humanitarian reasons or for other purposes
in the national interest, permit the processing of travelers to the
United States not engaged in ‘‘essential travel.’’
PETER T. GAYNOR
Acting Secretary,
U.S. Department of Homeland Security.
[Published in the Federal Register, January 19, 2021 (85 FR 4969)]
8
DHS is working closely with counterparts in Mexico and Canada to identify appropriate
public health conditions to safely ease restrictions in the future and support U.S. border
communities.7 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
19 CFR CHAPTER I
NOTIFICATION OF TEMPORARY TRAVEL RESTRICTIONS
APPLICABLE TO LAND PORTS OF ENTRY AND FERRIES
SERVICE BETWEEN THE UNITED STATES AND MEXICO
AGENCY: Office of the Secretary, U.S. Department of Homeland
Security; U.S. Customs and Border Protection, U.S. Department of
Homeland Security.
ACTION: Notification of continuation of temporary travel restric-
tions.
SUMMARY: This document announces the decision of the Secretary
of Homeland Security (Secretary) to continue to temporarily limit the
travel of individuals from Mexico into the United States at land ports
of entry along the United States-Mexico border. Such travel will be
limited to ‘‘essential travel,’’ as further defined in this document.
DATES: These restrictions go into effect at 12 a.m. Eastern
Standard Time (EST) on January 22, 2021 and will remain in effect
until 11:59 p.m. EST on February 21, 2021.
FOR FURTHER INFORMATION CONTACT: Stephanie
Watson, Office of Field Operations Coronavirus Coordination Cell,
U.S. Customs and Border Protection (CBP) at 202–325–0840.
SUPPLEMENTARY INFORMATION:
Background
On March 24, 2020, DHS published notice of the Secretary’s deci-
sion to temporarily limit the travel of individuals from Mexico into
the United States at land ports of entry along the United States-
Mexico border to ‘‘essential travel,’’ as further defined in that docu-
ment.1 The document described the developing circumstances
regarding the COVID–19 pandemic and stated that, given the out-
break and continued transmission and spread of the virus associated
with COVID–19 within the United States and globally, the Secretary
had determined that the risk of continued transmission and spread of
the virus associated with COVID–19 between the United States and
Mexico posed a ‘‘specific threat to human life or national interests.’’
1
85 FR 16547 (Mar. 24, 2020). That same day, DHS also published notice of the Secretary’s
decision to temporarily limit the travel of individuals from Canada into the United States
at land ports of entry along the United States-Canada border to ‘‘essential travel,’’ as
further defined in that document. 85 FR 16548 (Mar. 24, 2020).8 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
The Secretary later published a series of notifications continuing such
limitations on travel until 11:59 p.m. EST on January 21, 2021.2
The Secretary has continued to monitor and respond to the
COVID–19 pandemic. As of the week of January 4, there have been
over 83.3 million confirmed cases globally, with over 1.8 million con-
firmed deaths.3 There have been over 20.7 million confirmed and
probable cases within the United States,4 over 587,000 confirmed
cases in Canada,5 and over 1.4 million confirmed cases in Mexico.6
Notice of Action
Given the outbreak and continued transmission and spread of
COVID–19 within the United States and globally, the Secretary has
determined that the risk of continued transmission and spread of the
virus associated with COVID–19 between the United States and
Mexico poses an ongoing ‘‘specific threat to human life or national
interests.’’
U.S. and Mexican officials have mutually determined that non-
essential travel between the United States and Mexico poses addi-
tional risk of transmission and spread of the virus associated with
COVID–19 and places the populace of both nations at increased risk
of contracting the virus associated with COVID–19. Moreover, given
the sustained human-to-human transmission of the virus, returning
to previous levels of travel between the two nations places the per-
sonnel staffing land ports of entry between the United States and
Mexico, as well as the individuals traveling through these ports of
entry, at increased risk of exposure to the virus associated with
COVID–19. Accordingly, and consistent with the authority granted in
2
See 85 FR 83433 (Dec. 22, 2020); 85 FR 74604 (Nov. 23, 2020); 85 FR 67275 (Oct. 22, 2020);
85 FR 59669 (Sept. 23, 2020); 85 FR 51633 (Aug. 21, 2020); 85 FR 44183 (July 22, 2020); 85
FR 37745 (June 24, 2020); 85 FR 31057 (May 22, 2020); 85 FR 22353 (Apr. 22, 2020). DHS
also published parallel notifications of the Secretary’s decisions to continue temporarily
limiting the travel of individuals from Canada into the United States at land ports of entry
along the United States-Canada border to ‘‘essential travel.’’ See 85 FR 83432 (Dec. 22,
2020); 85 FR 74603 (Nov. 23, 2020); 85 FR 67276 (Oct. 22, 2020); 85 FR 59670 (Sept. 23,
2020); 85 FR 51634 (Aug. 21, 2020); 85 FR 44185 (July 22, 2020); 85 FR 37744 (June 24,
2020); 85 FR 31050 (May 22, 2020); 85 FR 22352 (Apr. 22, 2020). Both December notices
contained typos with respect to the end date of the extension; as of December 23, 2020,
correction notices were pending publication in the Federal Register.
3
WHO, Coronavirus disease 2019 (COVID–19) Weekly Epidemiological Update (Jan. 5,
2021), available at https://www.who.int/publications/m/item/weekly-epidemiological-
update—5-january-2021.
4
CDC, COVID Data Tracker (accessed Jan. 6, 2021), available at https://covid.cdc.gov/
covid-data-tracker/.
5
WHO, COVID–19 Weekly Epidemiological Update (Jan. 5, 2021).
6
Id.9 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 19 U.S.C. 1318(b)(1)(C) and (b)(2),7 I have determined that land ports of entry along the U.S.-Mexico border will continue to suspend nor- mal operations and will only allow processing for entry into the United States of those travelers engaged in ‘‘essential travel,’’ as defined below. Given the definition of ‘‘essential travel’’ below, this temporary alteration in land ports of entry operations should not interrupt legitimate trade between the two nations or disrupt critical supply chains that ensure food, fuel, medicine, and other critical materials reach individuals on both sides of the border. For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Mexico border shall be limited to ‘‘essential travel,’’ which includes, but is not limited to— • U.S. citizens and lawful permanent residents returning to the United States; • Individuals traveling for medical purposes (e.g., to receive medi- cal treatment in the United States); • Individuals traveling to attend educational institutions; • Individuals traveling to work in the United States (e.g., individu- als working in the farming or agriculture industry who must travel between the United States and Mexico in furtherance of such work); • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID–19 or other emergencies); • Individuals engaged in lawful cross-border trade (e.g., truck driv- ers supporting the movement of cargo between the United States and Mexico); 7 19 U.S.C. 1318(b)(1)(C) provides that ‘‘[n]otwithstanding any other provision of law, the Secretary of the Treasury, when necessary to respond to a national emergency declared under the National Emergencies Act (50 U.S.C. 1601 et seq.) or to a specific threat to human life or national interests,’’ is authorized to ‘‘[t]ake any . . . action that may be necessary to respond directly to the national emergency or specific threat.’’ On March 1, 2003, certain functions of the Secretary of the Treasury were transferred to the Secretary of Homeland Security. See 6 U.S.C. 202(2), 203(1). Under 6 U.S.C. 212(a)(1), authorities ‘‘related to Customs revenue functions’’ were reserved to the Secretary of the Treasury. To the extent that any authority under section 1318(b)(1) was reserved to the Secretary of the Treasury, it has been delegated to the Secretary of Homeland Security. See Treas. Dep’t Order No. 100–16 (May 15, 2003), 68 FR 28322 (May 23, 2003). Additionally, 19 U.S.C. 1318(b)(2) provides that ‘‘[n]otwithstanding any other provision of law, the Commissioner of U.S. Customs and Border Protection, when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.’’ Congress has vested in the Secretary of Homeland Security the ‘‘functions of all officers, employees, and organizational units of the Department,’’ including the Commis- sioner of CBP. 6 U.S.C. 112(a)(3).
10 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
• Individuals engaged in official government travel or diplomatic
travel;
• Members of the U.S. Armed Forces, and the spouses and children
of members of the U.S. Armed Forces, returning to the United States;
and
• Individuals engaged in military-related travel or operations.
The following travel does not fall within the definition of ‘‘essential
travel’’ for purposes of this Notification—
• Individuals traveling for tourism purposes (e.g., sightseeing, rec-
reation, gambling, or attending cultural events).
At this time, this Notification does not apply to air, freight rail, or
sea travel between the United States and Mexico, but does apply to
passenger rail, passenger ferry travel, and pleasure boat travel be-
tween the United States and Mexico. These restrictions are tempo-
rary in nature and shall remain in effect until 11:59 p.m. EST on
February 21, 2021. This Notification may be amended or rescinded
prior to that time, based on circumstances associated with the specific
threat.8
The Commissioner of U.S. Customs and Border Protection (CBP) is
hereby directed to prepare and distribute appropriate guidance to
CBP personnel on the continued implementation of the temporary
measures set forth in this Notification. The CBP Commissioner may
determine that other forms of travel, such as travel in furtherance of
economic stability or social order, constitute ‘‘essential travel’’ under
this Notification. Further, the CBP Commissioner may, on an indi-
vidualized basis and for humanitarian reasons or for other purposes
in the national interest, permit the processing of travelers to the
United States not engaged in ‘‘essential travel.’’
PETER T. GAYNOR,
Acting Secretary,
U.S. Department of Homeland Security.
[Published in the Federal Register, January 19, 2021 (85 FR 4967)]
8
DHS is working closely with counterparts in Mexico and Canada to identify appropriate
public health conditions to safely ease restrictions in the future and support U.S. border
communities.U.S. Court of International Trade
◆
Slip Op. 21–05
PRIME TIME COMMERCE LLC, Plaintiff, v. UNITED STATES, Defendant.
Before: Claire R. Kelly, Judge
Court No. 18–00024
[Sustaining the U.S. Department of Commerce’s remand redetermination in the
2015–2016 administrative review of certain cased pencils from the People’s Republic of
China.]
Dated: January 19, 2021
Mark B. Lehnardt and Lindita V. Ciko Torza Baker & Hostetler, LLP, of Washing-
ton, DC, for plaintiff.
Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. Also on the brief was Patricia
M. McCarthy, Assistant Director, Jeanne E. Davidson, Director, and Joseph H. Hunt,
Assistant Attorney General. Of Counsel on the brief was Brendan Saslow, Attorney,
Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of
Commerce, of Washington, DC.
OPINION AND ORDER
Kelly, Judge:
Before the court is the U.S. Department of Commerce’s (“Com-
merce”) remand redetermination pursuant to the court’s order in
Prime Time Commerce LLC v. United States, 43 CIT __, __, 396 F.
Supp. 3d 1319, 1334 (2019) (“Prime Time I”). See also Final Results of
Redetermination Pursuant to Ct. Remand Order in [Prime Time I]
Confidential Version, Oct. 7, 2019, ECF No. 39–1 (“Remand Results”).
In Prime Time I, the court remanded in part Commerce’s final deter-
mination in the 2015–2016 administrative review of the antidumping
duty (“ADD”) order covering certain cased pencils from the People’s
Republic of China (“PRC”). See Prime Time I, 43 CIT at __, 396 F.
Supp. 3d at 1334. The court ruled that Commerce’s decision rejecting
Prime Time’s factual submissions was contrary to law. See id. at
1326–29, 1334. The court instructed Commerce to place Prime Time’s
submission on the record, review it, and determine whether the
information would allow Commerce to calculate an importer-specific
rate. See id. at 1326–29. Further, the court ruled that Commerce’s
refusal to calculate an importer-specific assessment rate was unsup-
ported by substantial evidence. See id. 1329–32. On remand, Com-
merce reconsiders its rejection of Prime Time’s factual submission,
but nonetheless concludes that it cannot calculate an importer-
1314 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
specific assessment rate for Prime Time. See Remand Results at 3–16.
For the following reasons, the court sustains Commerce’s remand
redetermination.
BACKGROUND
The court presumes familiarity with the facts of this case, as set out
in its previous remand order, and now recounts the facts relevant to
disposition of this action. See Prime Time I, 43 CIT at __, 396 F. Supp.
3d at 1323–25. In response to timely requests, Commerce initiated its
2015–2016 administrative review of the ADD order covering certain
cased pencils from the PRC. See Initiation of Antidumping and Coun-
tervailing Duty Admin. Reviews, 82 Fed. Reg. 10,457, 10,458–59
(Dep’t Commerce Feb. 13, 2017) (“Initiation Notice”). Pertinent here,
Commerce selected Ningbo Homey Union Co., Ltd. (“Homey”) as the
sole mandatory respondent for individual examination.1 See Resp’t
Selection Memo. at 1, PD 23, bar code 3558523-01 (Mar. 31, 2017)
(“Resp’t Selection Memo”).2
Since Commerce considers the PRC to be a non-market economy
(“NME”), unless a respondent demonstrates otherwise, Commerce
presumes that all companies within the PRC are subject to
government-control and should be assigned a single “country-wide”
rate. See, e.g., Import Admin., [Commerce], Separate-Rates Practice
and Application of Combination Rates in Antidumping Investigations
involving [NME] Countries, Policy Bulletin 05.1 at 1 (Apr. 5, 2005)
(“Policy Bulletin 05.1”) (citations omitted), available at http://
enforcement.trade.gov/policy/bull05–1.pdf (last visited Jan. 12, 2021).
Although Homey initially sought to demonstrate its independence
from the country-wide entity by timely submitting a separate rate
application, it later stopped cooperating with Commerce’s requests
for information. See Certain Cased Pencils From the [PRC], 82 Fed.
Reg. 43,329, 43,330 (Dep’t Commerce Sept. 15, 2017) (preliminary
results of [ADD] admin. review, prelim. determination of no ship-
ments, & rescission of review, in part; 2015–2016) (“Prelim. Results”)
1
Commerce received requests for review of six companies, but after Orient International
Holding Shanghai Foreign Trade Co., Ltd. timely withdrew its request, Homey was the only
company left with entries during the period of review. See Resp’t Selection Memo at 1.
2
On March 26, 2018, Defendant submitted indices to the public and confidential adminis-
trative records underlying Commerce’s final determination. These indices are located on the
docket at ECF Nos. 12–2–3. On October 18, 2019, Defendant filed indices to the public and
confidential administrative records underlying Commerce’s remand redetermination.
These indices are located on the docket at ECF Nos. 41–2–3. All references to documents
from the initial administrative record are identified by the numbers assigned by Commerce
in the March 26th indices, see ECF No. 12, and preceded by “PD” or “CD” to denote the
public or confidential documents. All references to the administrative record for the remand
determination are identified by the numbers assigned in the October 18th indices, see ECF
No. 41, and preceded by “PRR” or “CRR” to denote remand public or confidential documents.15 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
and accompanying Decision Memo for [the Prelim. Results] at 2,
A-570–827, PD 63, bar code 3614317–01 (Aug. 31, 2017) (“Prelim.
Decision Memo”). Namely, Homey did not respond to Commerce’s AD
questionnaire. See Prelim. Decision Memo at 2.
Prime Time, an unaffiliated importer of Homey’s exports, sought to
file Sections C&D Questionnaire responses on behalf of Homey. See
Prime Time I, 43 CIT at __, 396 F. Supp. 3d at 1323; see also [Prime
Time’s] Req. Reconsideration at 2, PD 60, bar code 3604262–01 (Aug.
3, 2017).3 Commerce found that Prime Time’s questionnaire response
constituted unsolicited factual information, rejected Prime Time’s
submission along with Prime Time’s accompanying narrative of ad-
missibility, and removed all filings associated with Prime Time’s
submission from the record. See Prime Time I, 43 CIT at __, 396 F.
Supp. 3d at 1323–24. For its preliminary and final determinations,
Commerce concluded that Homey failed to meet the prerequisites for
separate rate eligibility, and further concluded that it could not cal-
culate an importer-specific assessment rate for Prime Time. See Pre-
lim. Decision Memo at 6; Certain Cased Pencils From the [PRC], 83
Fed. Reg. 3,112, 3,112 (Dep’t Commerce Jan. 23, 2018) (final results of
[ADD] administrative review; 2015–2016) (“Final Results”) and ac-
companying Issues & Decision Memo: Certain Cased Pencil’s from
the [PRC]; 2015– 2016 at 4–5, 6–7, A-570–827, (Jan. 16, 2018), ECF
No. 12–4 (“Final Decision Memo”). Commerce assigned the PRC-wide
assessment rate of 114.90% to Homey’s exports of subject merchan-
dise during the period of review. See Final Results, 83 Fed. Reg. at
3,113.
On July 19, 2019, the court remanded aspects of Commerce’s final
determination for further explanation or reconsideration. See Prime
Time I, 43 CIT at __, 396 F. Supp. 3d at 1326–34. Prime Time I held
that, to the extent that Prime Time’s submission was offered as
factual information not elsewhere defined pursuant to 19 C.F.R. §
301.301(c)(5) (2017),4 Commerce acted contrary to law by removing
Prime Time’s submission and accompanying narrative of admissibil-
3
Prime Time explained that it submitted the questionnaire responses so that Commerce
could construct an ADD rate for Homey. See Reply Br. of [Prime Time] Supp. R. 56.2 Mot.
for J. on Agency Record at 1, 18–19, Jan. 11, 2019, ECF No. 25. At oral argument, Prime
Time re-iterated that its objective in filing questionnaire responses on behalf of Homey was
to give Commerce the information it needed to construct an exporter-specific rate for
Homey, rather than a country-wide rate that resulted from Homey’s failure to meet the
prerequisites for separate rate eligibility. Oral Arg. at 11:30:32, Nov. 6, 2019, ECF No. 42
(“Oral Arg.”). With the questionnaire responses Prime Time filed on behalf of Homey, Prime
Time believed that Commerce could have used facts available, plus gap-filling information,
to construct Homey’s rate. Id. at 11:32:05. If Commerce constructed an exporter-specific rate
for Homey, then Commerce could have assigned an importer-specific rate to Prime Time—a
rate that Prime Time believed would be more favorable to it than the PRC-wide rate. Id.
4
Further citations to Title 19 of the Code of Federal Regulations are to the 2017 edition.16 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
ity from the record because Commerce’s regulations establish that
only unsolicited questionnaire responses and untimely information
will be removed from the record. See Prime Time I, 43 CIT at __, 396
F. Supp. 3d at 1326–29, 1334; see also 19 C.F.R. § 351.104(a)(2)(iii).5
The court also held that Commerce’s attempt to justify its refusal to
calculate an importer-specific assessment rate based on agency prac-
tice was unsupported by substantial evidence, because Commerce did
not explain why its practice is reasonable in light of its own regula-
tion directing the calculation of such a rate. See Prime Time I, 43 CIT
at __, 396 F. Supp. 3d at 1329–32.
On remand, Commerce accepts Prime Time’s submission and
evaluates it in light of Prime Time’s request that Commerce calculate
an importer-specific rate. See Remand Results at 1–16. However,
Commerce continues to determine that it cannot calculate an
importer-specific assessment rate for Prime Time. See id. Commerce
instead explains why its practice of calculating an importer-specific
assessment rate only when it calculates a margin for an individually-
examined exporter is reasonable, even in light of its regulation di-
recting the calculation of an importer-specific rate. See id. at 5–8.
Moreover, Commerce explains why it can neither calculate an ex-
porter rate for Homey using Prime Time’s factual submission, see
Final Decision Memo at 4–5, nor can it calculate an assessment rate
for Prime Time using the PRC-wide entity rate or Prime Time’s
factual submission. See Remand Results at 5–8.
Commerce received no comments on the draft results of its
remand analysis. See id. at 2. Only after Commerce’s final remand
redetermination did Prime Time submit comments before this court
challenging Commerce’s continued refusal to calculate an importer-
specific assessment rate. See Pl. [Prime Time]’s Cmts. on Remand
Redetermination Confidential Version, Nov. 6, 2019, ECF No. 42
(“Prime Time’s Br.”). On December 6, 2019, briefing on Commerce’s
remand redetermination concluded. See Def.’s Reply to Cmts. on
Remand Results, Dec. 6, 2019, ECF No. 44 (“Def.’s Reply Br.”). On
November 5, 2020, the court heard oral argument. See Oral Arg., Nov.
5, 2020, ECF No. 55 (“Oral Arg.”).
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of
the Tariff Act of 1930, as amended 19 U.S.C. § 1516a(a)(2)(B)(iii)
5
Moreover, because Commerce removed Prime Time’s narrative of admissibility from the
record, the court held that Commerce’s rejection of the factual submission was unsupported
by substantial evidence, as the very basis for that decision was not made available to the
court for review. See Prime Time I, 43 CIT at __, 396 F. Supp. 3d at 1329.17 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
(2012),6 and 28 U.S.C. § 1581(c) (2012),7 which grant the court au-
thority to review actions contesting the final determination in an
administrative review of an ADD order. The court will uphold Com-
merce’s determination unless it is “unsupported by substantial evi-
dence on the record, or otherwise not in accordance with law[.]” 19
U.S.C. § 1516a(b)(1)(B)(i). “The results of a redetermination pursuant
to court remand are also reviewed ‘for compliance with the court’s
remand order.’” Xinjiamei Furniture (Zhangzhou) Co. v. United
States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014) (quoting
Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274,
587 F. Supp. 2d 1303, 1306 (2008)).
DISCUSSION
I. Exhaustion
Prime Time argues that Commerce ignored remand instructions to
use Prime Time’s questionnaire responses, along with gap-filling in-
formation, to calculate a rate for Prime Time; and, that Commerce’s
explanation regarding its practice of calculating an importer-specific
rate only when Commerce calculates a margin for an individually-
examined exporter, was insufficient and unreasonable. See Prime
Time’s Br. at 5–9. In response, Defendant argues that Prime Time
misstates the remand instructions and that the court should not
consider Prime Time’s submissions with respect to Commerce’s re-
fusal to calculate an importer-specific assessment rate because Prime
Time did not exhaust its administrative remedies. See Def.’s Reply Br.
at 3–8. Prime Time submits that the exhaustion requirement does not
preclude the court from considering arguments, where the issue be-
fore the court is a pure question of law, and where doing so would
have otherwise been futile. See Prime Time’s Br. at 9–11.
“[T]he Court of International Trade shall, where appropriate, re-
quire the exhaustion of administrative remedies.” 28 U.S.C. §
2637(d). Parties are required to exhaust administrative remedies
before the agency by raising all issues in their initial case briefs
before Commerce. See Dorbest Ltd. v. United States, 604 F.3d 1363,
1375 (Fed. Cir. 2010) (citing to 19 C.F.R. § 351.309(c)(2), (d)(2); Mittal
Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383 (Fed. Cir.
2008)); ABB, Inc. v. United States, 920 F.3d 811, 818 (Fed. Cir. 2019).
However, courts have recognized several exceptions to the exhaustion
requirement. See Itochu Bldg. Prods. v. United States, 733 F.3d 1140,
6
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
7
Further citations to Title 28 of the U.S. Code are to the 2012 edition.18 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 1146 (Fed. Cir. 2013) (“Itochu”) (“Requiring exhaustion may also be inappropriate where the issue for the court is a ‘pure question of law’ that can be addressed without further factual development or further agency exercise of discretion.” (quoting Agro Dutch Indus., Ltd. v. United States, 508 F.3d 1024, 1029 (Fed. Cir. 2007)); see id. (“[A] party often is permitted to bypass an available avenue of administrative challenge if pursuing that route would clearly be futile, i.e., where it is clear that additional filings with the agency would be ineffectual.” (citing Corus Staal BV v. United States, 502 F.3d 1370, 1378–79 (Fed. Cir. 2007)). Prime Time’s arguments are barred because they were not raised before Commerce. After issuing the draft results of redetermination, Commerce invited parties to comment, but none did. See Remand Results at 2. Prime Time claims that raising its arguments before Commerce would have been futile, explaining that it “has repeated its request that Commerce place gap-filling information on the record on five prior occasions.” Prime Time’s Br. at 10. Prime Time conflates Commerce’s refusal to place gap-filling information on the record prior to having Prime Time’s questionnaire responses, with Com- merce’s refusal to place gap-filling information on the record after having Prime Time’s questionnaire responses. Prime Time cannot argue that prior attempts to have Commerce obtain and consider gap-filling information, or its questionnaire responses, render its efforts to have Commerce obtain and consider the gap-filling infor- mation now, under different circumstances, futile. Prime Time cites a number of cases which do not support its posi- tion. See Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1381 (Fed. Cir. 2013) (finding that plaintiff was precluded from introducing an invoice for the first time in its challenge before the CIT to the remand determination, where the underlying issue existed throughout the entirety of the proceedings); Hontex Enters. v. United States, 28 CIT 1000, 1004–06, 342 F. Supp. 2d. 1225, 1229–30 (2004) (confronting identical issue upon which the plaintiff had al- ready commented); Holmes Prods. Corp. v. United States, 16 CIT 1101, 1103–04 (1992) (finding that plaintiff was precluded from chal- lenging an agency decision, even though agency was aware of the issue, because no party objected); Valley Fresh Seafood, Inc. v. United States, 31 CIT 1989, 1994–96 (2007) (not requiring exhaustion where agency considered the issue and the plaintiff lacked “meaningful opportunity” to challenge agency’s position). Additionally, at oral argument, Defendant invoked Itochu, Oral Arg. at 11:24:22, in which a domestic nail manufacturer notified
19 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 Commerce “that it no longer had an interest in receiving [ADD] relief from imports” of certain nails, and requested partial revocation of a standing ADD order. See Itochu, 733 F.3d at 1142–43. Itochu Building Products (“Itochu”), in support of that request, “submitted comments, and met with department officials” to advocate a proposed date for the revocation to become effective. See id. at 1143. Commerce preliminar- ily declined Itochu’s requested date in favor of setting a date in accordance with Commerce’s standard practice. See id. at 1143–44. Commerce invited interested parties to submit comments on its pre- liminary determination, however it stated that the receipt of com- ments would impact the publication date for the final results (up to 270 days if it received comments or up to 45 if it did not). See id. at 1144. Since submitting comments would have delayed the publication of Commerce’s final results, and because Itochu did not have any new or different reasons supporting its proposed effective date, the Court of Appeals for the Federal Circuit ruled that Itochu was excused from the normal exhaustion requirement because it would have been futile and indeed harmful for Itochu to have to exhaust remedies. See id. at 1146–47. In Itochu, Commerce summarily rejected the domestic producers challenge to Commerce’s choice of an effective date because of an established practice. See id. at 1146–47. Here, although Commerce has a practice to calculate importer-specific assessment rates only when Commerce calculates a margin for each individually-examined exporter, see Remand Results at 5, the court remanded to Commerce to consider Prime Time’s submission “in the context of calculating an importer-specific assessment rate.” See Prime Time I, 43 CIT at __, 396 F. Supp. 3d at 1323. Commerce therefore had to apply and justify its practice as reasonable in light of Prime Time’s submission. Although Prime Time called upon Commerce to use gap-filling infor- mation it might have from other reviews, Commerce found that ob- taining and utilizing gap-filling information in this case would not be appropriate given the amount and character of information missing from the record. Specifically, Commerce lacked necessary factors of production and consumption data for Homey, as well as any expenses paid in connection with possible market economy purchases. See Remand Results at 9–14. Without this information, Commerce ex- plained, it could not calculate an accurate margin for Homey. See id. Commerce concluded that too many inaccuracies and distortions “would likely result from seeking to construct a proxy for Ningbo Homey’s production process.” Id. at 14. Prime Time now challenges Commerce’s determination and argues that Commerce should use
20 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 gap-filing information to calculate an importer specific rate. See Prime Time’s Br. at 5–11. Yet, Commerce was not given an opportu- nity to respond to Prime Time’s arguments in its remand redetermi- nation; thus, the court cannot now assess Commerce’s analysis in light of submissions advanced by Prime Time after the fact. The question of whether Commerce could reasonably obtain gap filling information and construct a proxy for Homey’s production process prior to inclusion of Prime Time’s questionnaire responses is distinct from the question of whether Commerce could do so after inclusion and consideration of Prime Time’s responses. Prime Time’s argument that it was not required to exhaust rem- edies before Commerce because the issue presented is a pure question of law is also misplaced. Prime Time argues that Commerce failed to comply with the remand order—an issue which Prime Time states is a pure question of law, for which exhaustion is not required. See Prime Time’s Br. at 9–10. The court reviews Commerce’s remand determination for compliance with the court’s order below, however, Prime Time’s argument misstates the court’s remand order. Prime Time suggests that this court ordered Commerce to put the gap-filling information on the record. See id. at 5–7; Oral Arg. at 11:06:22. The remand order directed Commerce to consider the information Prime Time had previously submitted, determine whether it could use the information to calculate an importer-specific rate, and if not, explain why. See Prime Time I, 43 CIT at __, 396 F. Supp. 3d at 1334. Commerce did consider whether it could use Prime Time’s informa- tion to calculate such a rate, and it explained why it could not. See Remand Results at 2, 5–16. Given that Prime Time disagreed with Commerce’s conclusion, it could, and should, have submitted com- ments on Commerce’s draft results. The question resolved in Prime Time I was whether Commerce reasonably determined that it could not consider the information Prime Time submitted to it. See Prime Time I, 43 CIT at __, 396 F. Supp. 3d at 1326–31. In the remand order, the court instructed Commerce to consider whether, with Prime Time’s information, it could calculate an importer-specific rate. See id. at 1334. Commerce concluded that it could not supplement the record with information from other sources to calculate a reliable importer-specific rate, even with Prime Time’s information on the record. See Remand Results at 13–14. Prime Time failed to exhaust administrative remedies, thus the court will not consider its arguments contesting Commerce’s decision not to place gap-filling information on the record to calculate an importer-specific rate.
21 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 II. Calculation of an Importer-Specific Assessment Rate The court remanded for further explanation, Commerce’s determi- nation that it could not calculate an importer-specific assessment rate in light of Prime Time’s submission. Commerce’s explanation that it only calculates an importer-specific rate when it can calculate an exporter-specific rate, and that due to the amount of information missing from Prime Time’s submissions, it would be unduly difficult, and in any event unreliable, to calculate an importer-specific assess- ment rate, is reasonable. Commerce must calculate a dumping margin for each entry of subject merchandise under review. See 19 U.S.C. § 1675(a)(2)(A). Further, pursuant to 19 C.F.R. § 351.212(b)(1), Commerce “normally will calculate an assessment rate for each importer of subject mer- chandise covered by the review . . . by dividing the dumping margin found on the subject merchandise examined by the entered value of such merchandise for normal customs duty purposes.” 19 C.F.R. § 351.212(b)(1). Commerce explains that, where it does not calculate a dumping margin for an examined exporter, its practice is to not calculate an assessment rate for a given importer of the subject merchandise because Commerce’s calculation of that importer’s assessment rate is contingent on data provided by the exporter during the course of a review. See Remand Results at 5–8. According to Commerce, the term “dumping margin” used in 19 C.F.R. § 351.212(b)(1) refers to an exporter’s “extended margin.” Id. at 6. When Commerce determines the importer-specific assessment rate, it is determining what portion of an exporter’s extended margin is attributable to entries of the subject merchandise made by each importer. See id. Commerce thus explains that calculating an exporter’s “extended margin” is a pre- requisite for calculating an importer-specific assessment rate. Id. at 6–7. Elaborating on its methodology, Commerce explains that the ex- tended margin is calculated by multiplying a figure Commerce refers to as the “potential uncollected dumping duties” (“PUDD”) of an exporter’s U.S. sales by the total quantity of the exporter’s U.S. sales. Id. at 6. The PUDD represents the difference between ex-factory prices of a mandatory respondent’s U.S. sales and the normal value of those sales. See id. & n.18 (citing Torrington Co. v. United States, 44 F.3d 1572, 1576, 1578 (Fed. Cir. 1995)). By multiplying the PUDD by the total quantity of the exporter’s U.S. sales, Commerce derives the extended margin, which represents the universe of potentially uncol- lected dumping duties stemming from the respondent’s sales of sub-
22 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021 ject merchandise into the United States. See id. That extended mar- gin serves as the basis for calculating the importer-specific assessment rate. See id. at 6–8. Namely, Commerce apportions the pool of potentially uncollected dumping duties arising out of a respon- dent’s sales of subject merchandise into the U.S. amongst various importers by dividing that amount by the total value of the importer’s entries of subject merchandise from that respondent-exporter. See id. The resulting figure, i.e., the importer-specific assessment rate, rep- resents the amount of potentially unpaid duties relating to a specific importer’s entries. See id. at 7. As such, Commerce submits that its practice of declining to calcu- late an importer-specific assessment rate is reasonable, even though its regulation directs that normally one will be calculated, because the extended margin is necessarily unique to the exporter being examined. See id. at 7–8; see also 19 C.F.R. § 351.212(b)(1). Commerce adds that, although it could theoretically extract a PUDD from the PRC-wide rate, since a PUDD extracted from the PRC-wide rate would “in no way relate to the importer-specific entered value[,]” Commerce concludes that this approach would be “no more represen- tative than using the [PRC]-wide rate for assessment purposes.” Id. at 8 & n.8. Moreover, Commerce explains that although Prime Time submitted some questionnaire information, it did not—because it could not— submit certain information that is unique to Homey. See Remand Results at 9–14. In the Final Results, Commerce explained that it would be unduly difficult for Commerce to obtain gap-filling informa- tion to supplement Prime Time’s submission and construct a proxy rate for Homey because Prime Time’s submission was too incomplete. See Final Decision Memo at 4–5; Remand Results at 9–16 & n.44. On remand, Commerce further explains that it cannot reliably fill in this missing information. See id.8 In Prime Time’s Section C submission, the “complete universe of sales” that Homey made was missing, and without this information, Commerce cannot properly conduct a dif- ferential pricing analysis which looks at all of the exporters sales and determines if there is “pattern of sales for comparable merchandise that differ significantly among purchasers, regions, or time periods in order to determine whether a pattern of prices differ significantly.” 8 Prime Time argues that Commerce failed to comply with 19 U.S.C. § 1677m(e)(3) which states that it should not refuse to consider information that is “not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination[.]” However, Commerce has specifically stated that Prime Time’s submission is insufficient to calculate either an exporter rate for Homey or an importer rate for Prime Time. See Remand Results at 9–16.
23 CUSTOMS BULLETIN AND DECISIONS, VOL. 55, NO. 4, FEBRUARY 3, 2021
See id. at 10–11. In Prime Time’s Section D submission, information
about the production and manufacturing process is missing, but is
needed in order for Commerce to calculate Homey’s normal values.
See id. at 12–14.
Commerce’s practice, and consequent decision not to calculate an
importer-specific assessment rate here, is reasonable. Commerce ex-
plains its practice that it only calculates an importer-specific rate
when it has calculated a rate for the corresponding exporter under
review and further explains why it chose not to obtain gap-filling
information to create a proxy for Homey’s production process. See
Remand Results at 5–14. It is the burden of interested parties to
populate the record; a burden which was not met in this case. See
BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1295 (Fed. Cir.
2019); Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378,
1386–87 (Fed. Cir. 2014); QVD Food Co., Ltd. v. United States, 658
F.3d 1318, 1324 (Fed. Cir. 2011).
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are sup-
ported by substantial evidence and comply with the court’s order in
Prime Time I, and are therefore sustained. Judgment will enter ac-
cordingly.
Dated: January 19, 2021
New York, New York
/s/ Claire R. Kelly
CLAIRE R. KELLY, JUDGE
◆
Slip Op. 21–06
PRIMESOURCE BUILDING PRODUCTS, INC., Plaintiff, v. UNITED STATES, et
al., Defendants.
Before: Timothy C. Stanceu, Chief Judge
Jennifer Choe-Groves, Judge
M. Miller Baker, Judge
Court No. 20–00032
OMAN FASTENERS, LLC, Plaintiff, v. UNITED STATES, et al., Defendants.
Consol. Court No. 20–00037
ASTROTECH STEELS PRIVATE LTD., Plaintiff, v. UNITED STATES, et al.,
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